2nd Circ. Revives NYC Law Claim In Age Discrimination Suit

Law360 – February 13, 2015
The Second Circuit Friday vacated a portion of a district court’s judgment in an employment suit brought against Columbus Citizens Foundation by a former employee over age discrimination, saying separate claims brought under New York law were not properly reviewed.

In a per curiam decision, the three-judge panel affirmed the Southern District’s dismissal of Hugo Velazco’s claims brought under the federal Age Discrimination in Employment Act, but revived a claim brought under the New York City Human Rights Law, saying the district court did not analyze that claim separately and independently as required.

“In sum, because we cannot confidently conclude that the district court analyzed plaintiff’s NYCHRL claim under the standard applicable thereto, we must vacate the portion of the district court’s judgment related to the plaintiff’s NYCHRL claim,” the decision states.

Velazco had worked for Columbus Citizens Foundation, a nonprofit organization that celebrates Italian-American heritage, as a busboy, dishwasher, waiter and doorman for 22 years, according to the original complaint, which was filed in September 2012 and brought age discrimination claims under city law, state law and the ADEA.

The worker was fired from his doorman position in March 2007 by Columbus general manager and executive chief John Boden — also a defendant in the suit — who accused him of using a member’s vehicle for personal business without authorization, the suit said. Velazco had been asked by police to move a member’s illegally parked vehicle — which he says fell within his job duties — and got caught behind a garbage truck for about 10 to 15 minutes, according to the complaint.

Boden allegedly told another employee at Columbus prior to Velazco’s firing that he would “get rid of him somehow” and had openly referred to him as a “useless old man” during the three previous years, the lawsuit alleged.

Velazco was 62 years old when he was fired by Boden, who was 37 at the time and immediately replaced him with a 25-year-old man, the complaint said.

The district court granted Columbus summary judgment last February on all claims, and Velazco appealed the ADEA and city law claims the following month. The Second Circuit found that the district court should have analyzed the New York City law claim independently and remanded that portion of the judgment for further proceedings.

In a separate summary order, the court said that Velazco had failed to show that animus toward his age was a “but-for cause” of the decision by Columbus to fire him.

“In this case, no reasonable juror could have concluded that animus toward Velazco’s age was the but-for cause of CCF’s termination decision, both because the subordinate who was accused of animus in fact recommended a two-week suspension rather than termination, and because the ultimate decision-maker found the plaintiff’s actions—taking a member’s car out for the apparent purpose of personal shopping — ’egregious,’” it said.

“We appreciate the Second Ciircuit’s complete rejection of the federal age discrimination claims, and await Judge Daniels’ updated decision on the related city age discrimination claims,” Michael A. Miranda of Miranda Slone Sklarin Verveniotis LLP, told Law360.

Alexander Coleman, attorney for Velazco, said Friday that the decision was a mixed bag.

“We’re very happy that the city human rights claim has been reinstated and we’re excited to continue litigating that claim,” Coleman said. “We think our client has a very strong case. Obviously we’re disappointed that the court did not reinstate the ADEA claims. We thought we had a strong argument, but the Second Circuit disagreed.”

Velazco is represented by Michael J. Borrelli, Alexander T. Coleman and Jeffrey R. Maguire of Borrelli & Associates PLLC.

Columbus Citizens Foundation is represented by Michael A. Miranda of Miranda Slone Sklarin Verveniotis LLP.

The case is Hugo Velazco v. Columbus Citizens Foundation et al., case number 14-842, in the U.S. Court of Appeals for the Second Circuit.